UNITY BANK PLC. v. A.Y.A. ADEMILUYI (2013)

UNITY BANK PLC. v. A.Y.A. ADEMILUYI

(2013)LCN/6543(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of November, 2013

CA/B/149/2010

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

UNITY BANK PLC. – Appellant(s)

AND

A.Y.A. ADEMILUYI – Respondent(s)

RATIO

WHETHER OR NOT A RESPONDENT WHO INTENDS TO RELY ON A PRELIMINARY OBJECTION MUST GIVE THE APPELLANT THREE DAYS NOTICE SETTING OUT THE GROUNDS OF OBJECTION

Indeed, it’s a trite fundamental rule, that where (as in the instant case), the Respondent in an appeal intends to rely upon a preliminary objection to the hearing of the appeal, he shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection. Failure to comply with the aforesaid trite rule, may warrant the court to refuse to entertain the objection or adjourn the hearing of the appeal at the costs of the Respondent. See Order 10 Rules 1 & 3 of the Court of Appeal Rules, 2011.In the instant case, it’s rather evident on the face of the records, that the Respondent has failed to give notice of the so called preliminary points (objection) raised in the brief thereof. He deemed it fit to surreptitiously, as it were, raised the preliminary points (objection) at pages 3 – 6 of the said brief thereof in an apparent disregard of the well set out and rather unequivocal provisions of Order 10 Rule 1 of the extant Rules of this court. Thus, in exercise of the discretionary power accorded this court under Order 10 Rule 3 (Supra), the purported preliminary points (objection) surreptitiously raised in the said Respondent’s brief ought to be deemed incompetent and discountenanced. And I so hold. PER SAULAWA, J.C.A.

THE PURPOSE OF A COLLECTIVE AGREEMENT

WHETHER OR NOT AN EXTRANEOUS AGREEMENT NOT ENTERED INTO BY PARTIES TO A CONTRACT OF SERVICE CAN BE MADE THE BASIS OF AN ACTION

An extraneous agreement not entered into by the parties to a contract of service cannot be made the basis of an action by an employee unless it is incorporated into the contract of such employee. In this case, the policy statement contained in Exhibit ‘C’ made by the Nigerian National Petroleum Corporation was not binding on the Respondent with regard to its contract with the Appellant as it was not incorporated into exhibit N17 and it therefore gives the Appellant no cause of action against the Respondent. See CHUKWUMAH VS. SHELL PETROLEUM DEV. CO. OF NIG. LTD (1993) 4 NWLR (Pt. 289) 512 @ 543 H; 544 E – F; 567 B – D; H. See also UBN PLC VS. EDET (1993) 4 NWLR (Pt. 287) 297; UBN VS. CHINYERE (2010) 10 NWLR (Pt. 1203) 453 @ 469 E – F. PER SAULAWA, J.C.A.

WHETHER OR NOT A PARTY IS BOUND TO CALL ANY PARTICULAR WITNESS IF HE CAN PROVE HIS CASE OTHERWISE

For the avoidance of doubt, It needs to be reiterated, that subsection (d) of Section 149 of the Evidence Act (Supra) specifically deals with a party’s failure to call evidence, and not the failure to call a particular witness: ASARIYU VS. THE STATE (1987) 4 NWLR 709. Thus, a party is not bound to call any particular witness if he can prove his case otherwise. Furthermore, before the presumption under Section 149(d) of the Evidence Act can apply, the party against whom it is sought to operate must have infact withheld evidence. Thus, mere failure to produce the evidence would not necessarily amount to withholding such evidence. See TENOGBADE VS. AKANDE (1968) NMLR 404 @ 408; ASARIYU VS. THE STATE (1925) 6 NLR 92.In the circumstance, it’s my considered view that, had the Respondent deemed it expedient to plead and tender the letter of appointment thereof, it would have gone a long way in assisting the lower court in ascertaining the terms and conditions of service binding upon the respective parties thereto, rather than embarking on a futile voyage of discovery, as was obviously done in the instant case. See UBN VS. CHINYERE (2010) 10 NWLR @ 471 C – F. PER SAULAWA, J.C.A.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal is against the Judgment of the Edo State High Court, which was delivered on September 21, 2009 in Suit No. B/327/2002. By the said Judgment, the lower court, coram the Hon. Justice D.I. Okungbowa, awarded to the Respondent the sum of N1, 647, 292.76 with costs assessed at N10, 000.00.

By paragraph 18 of 2nd Further Amended Statement of Claim thereof (dated 11/5/06), the reliefs sought by the Respondent against the Appellant are to the following effect:

18. the Plaintiff claims from the defendant the sum of N2, 083, 653.84 made as follows:

i. 13th Months Ex-Gratia salary N23, 958.72

ii. Balance of leave days commuted to cash 100, 893. 27

iii. Balance of rationalization or redundancy payment 1, 569,527.77

iv. Balance of 3 months salary in lieu of Notice 71, 876. 15

v. October, 2000 salary 35, 559. 81

vi. 30% across board salary adjustment 22, 986. 83

vii. National Housing Fund Contributions 150, 000. 00

viii. Refund of Superannuation Fund Contribution 108, 851. 39

Total N2, 083, 653. 84

It’s evident from the records, that the Respondent was an employee of the Appellant, a Commercial Bank. Consequent upon the restructuring of the Appellant, the service of the Respondent was withdrawn by the Appellant with effect from October 19, 2000. The Respondent was paid, inter alia, a gratuity assessed at N720,051.82 (Seven hundred and twenty thousand, fifty-one Naira and eighty-two kobo) only based on his basic salary as stipulated in the condition of service governing the relation between the respective parties.

In reaction to the said gratuity paid thereto, the Respondent instituted the action claiming the reliefs as set out in paragraph 14 of the 2nd Further Amended Statement of Claim. Pleadings were filed by the respective parties. The suit eventually proceeded to trial. At the end of which the lower court delivered the vexed Judgment to the conclusive effect, thus:

From the totality of the foregoing the Plaintiffs claim succeeds in part. Accordingly, Judgment is hereby entered for the Plaintiff in the sum of N1, 647, 292.76 broken down as –

1. Balance of rationalization or redundancy N1, 539,859.80

2. Balance of three months’ salary in lieu of N71,813.15

3. October, 2000 salary N35, 559.81

TOTAL N1, 647, 292.76

The defendant shall pay costs of N10,000.00 to the Plaintiff.

Dissatisfied with the vexed Judgment, the Appellant appealed to this court upon six grounds of appeal. The record of appeal was compiled and transmitted to this court on 22/01/10. The Appellant’s brief was initially filed on 03/10/12 but deemed properly filed on 27/9/13. That of the Respondent was filed on 29/11/12. The Appellant has raised at page 3 of the said brief thereof three issues for determination, viz:

1. Whether or not the learned trial Judge was right to hold that the collective argument (Exhibit “D”) governed the relationship of the parties and therefore binding on them when there was no evidence of its adoption by the parties as forming part of or incorporated into the Respondent’s contract of employment with the Appellant.

This issue is distilled from Grounds of Appeal Nos. 1, 4 and 5.

2. Whether or not the findings of the learned trial Judge that the disengagement of the Respondent’s services from the Appellant’s Bank was based on redundancy are supported either in law by evidence adduced at the trial.

This issue is distilled from Ground of Appeal No. 2.

3. Whether or not the learned trial Judge was right in holding that the terminal benefits of the Respondent be computed and/or calculated based on total emolument and not on basic salary having regards to the evidence adduced at the trial.

This issue is predicated on Ground of Appeal No. 3.

On Issue 1, it was submitted, inter alia, by the Appellant’s learned counsel that the trial court has erred in holding that the parties are bound by the collective agreement – (Exhibit D). Allegedly, Exhibit D is a gentleman’s Agreement, which cannot per se ground a cause of action except where it’s incorporated into conditions of the contract of service. Thus, it’s an extra legal document totally devoid of sanctions. For the above submission, the learned counsel cited and relied upon CHUKWUMAH VS. SPDC (NIG) LTD (1993) 4 NWLR (Pt. 289) 512; UBN PLC VS. EDET (1993) 4 NWLR (Pt. 287) 297; UBN VS. CHINYERE (2010) 10 NWLR (Pt. 1203) 453 @ 469 E – F.

It was further submitted, that the Respondent failed to tender his letter of employment to show that the provisions of Exhibit D were incorporated therein. That, had the Respondent tendered his letter of employment, it would have been unfavourable thereto. Thus, the court is urged to invoke Section 149 (d) of the Evidence Act against the Respondent. See AGBI VS. OGBEH (2006) 11 NWLR (Pt.990) 65 @ 125 paragraph H.

Accordingly, failure to plead and tender the said letter of employment is fatal to Respondent’s case. This is because, the letter of employment is the foundation of the Respondent’s contractual relationship with the Appellant. See UBN VS. CHINYERE (Supra) @ 471 C – F.

Apart from Exhibit D, Exhibits G, H & C were equally alluded to by the Appellant. It was submitted, that none of the said exhibits (G, H & C) was addressed or communicated to Respondent. No evidence was led to prove that the Appellant wrote to the Respondent in order to incorporate the terms of the said exhibits in to the terms and conditions of his contract of employment. That, the lower court wrongly examined and evaluated the evidence of DW1 under cross-examination, and came to the conclusion that Exhibit D was binding on the parties (pages 87 – 88, Record). See UNION BANK NIG LTD VS. EDET (Supra), CHUKWUMAH VS. SPDC (NIG) LTD (Supra); NEW NIGERIA BANK PLC VS. OSOH (Supra); UBN VS. CHINYERE (Supra).

One other reason why the Respondent’s claims must fail is based on the doctrine of privity of contract. It is postulated that from the totality of his pleadings and evidence, it’s clear that the Respondent did not personally negotiate Exhibits C and D for himself. That, though these agreements were entered into by the unions on behalf, and for the benefits, of the parties to the exhibits, in law they (parties) cannot sue to enforce them. See MAKWE VS. UWUKOR (2001) 32 WRN @ 10.

The Respondent allegedly failed to prove his legal rights which have been breached, and for which he could institute an action for remedy. See THOMAS VS. OLUFOSOYE (1986) 1 NWLR (Pt. 18) 669 @ 690.

Thus, the court is urged to so hold, and resolve Issue No. 1 in favour of the Appellant.

It was submitted on Issue No.2, that the findings of the lower court that the Respondent was disengaged from the Appellant on ground of redundancy were without basis. As those findings were not supported either in and/or by evidence adduced before the lower court. As such, the said finding is perverse, and same has occasioned a miscarriage of justice. That, the contents of Exhibit D are clear and unambiguous. In the interpretation of a document paragraph 1 (oral) evidence would not be admissible to contradict, vary or alter it, where the document is clear and unambiguous. See Section 132 Evidence Act; BUNGE VS. THE GOV. OF RIVERS STATE (2006) 12 NWLR (Pt. 995) 575 @ 616 – 617; OLANLEGE VS. AFRO CONTINENTAL NIG. LTD (1996) 7 NWLR (Pt. 458) 29 @ 40.It was submitted, that the importation of “redundancy” into exhibit A by the lower court gave it a different meaning and colouration to the benefit of the Respondent, thus occasioning a miscarriage of justice (to the Appellant). According to the Appellant, the reason for the withdrawal of the Respondent’s appointment by the Appellant, was the restructuring and taking over thereof by the new management, and not on ground of redundancy.

The court is urged to resolve Issue No. 2 in favour of the Appellant.

The submission of the Appellant on Issue No. 2 is, inter alia, to the effect that the lower court relied on Exhibit C to hold that “By Exhibit “C” the parties agreed that the salary in lieu of notice was to be based on total emolument …” It was submitted, that the lower court was in error to have applied and relied on Exhibit C, which as contended under Issue No. 1, is not justifiable.

The court is urged to equally resolve Issue No.3 in favour of the Appellant.

On the whole, the Appellant has urged the court to allow the appeal, and accordingly set aside the Judgment of the lower court.

On the part thereof, the Respondent has equally raised three issues in the brief thereof for determination, viz:

(i) Whether the learned trial Judge was not right in holding that the collective has been impliedly and or expressly incorporated by the by the appellant in the condition of contract of service with the Respondent (this issue covers grounds 1, 4 and 5 of the ground of Appeal).

(ii) Whether the learned trial Judge was not right in holding that the disengagement of the Respondent from service by the Appellant was based on redundancy (this ground of Appeal is distilled from ground 2 of the grounds of Appeal).

(iii) Whether the learned trial Judge did not consider the defence of the Appellant (this issue covers ground 3 of the grounds of Appeal).

The Respondent has, from the outset, urged the court to strike out the ground 6 of the ground of appeal on the grounds that no issue was formulated thereupon, and no argument was proffered in support thereof. Similarly, the Respondent has urged upon the court to hold that ground 3 of the grounds of appeal is incompetent. The reason being that ground 3 complains that the learned trial Judge misdirected himself when he failed to consider defence of a defendant is an error of law, and certainly not a misdirection. That, the particulars of error have not even amplified the ground of appeal. Rather it has compounded it; for no item of reliefs of the Respondent is predicated on pension, nor have the parties joined issue thereon in their pleadings.

Thus, the court is urged to strike out the said ground, and the argument based thereon. See AWASIKE VS. IBEKWE (1987) 4 NWLR (Pt. 67) 718 @ 721; AKPAN VS. UDO (2008) 3 NWLR (Pt. 1075) 590 @ 602 F – G; IBRAHIM VS. OJOMOH (2004) 4 NWLR (Pt. 862) 89 @ 104 C – F; FED HOUSING AUTHORITY VS. KALEJAIYE (2010) 19 NWLR (Pt. 1226) @ 167 G – H.

Having raised the above preliminary points regarding the Appellant’s grounds of appeal and brief of argument, the Respondent proceeded to argue the appeal.

Regarding Issue No. 1, it was submitted that the lower court was right when it held that the Defendant having referred to exhibit in their letter (Exhibit G) and agreed to implement its terms in Exhibit C, the Defendant has incorporated Exhibit D in the condition of the contract of service with the Plaintiff.

It was further submitted, that with detailed references to Exhibit D in Exhibits C, G and H and the evidence of DW1, (who admitted under cross examination, the existence of Exhibit D as a collective agreement of the parties), the lower court was right in holding that –

“The Defendant witness having admitted exhibit “D” as the collective agreement of the parties… the court has no choice than to hold that the Defendant has incorporated it in the condition of the contract of service with the Plaintiff.

In support of the above submission, the Respondent cited and relied upon – OLAREWAJU VS. AFRIBANK NIG. PLC (2001) 90 LRCN 2764; DAODU VS. UBWA PLC (2004) 9 NWLR (Pt. 878) 276.

On whether or not the Respondent’s letter of employment was pleaded and tendered in evidence, it was contended that the Respondent pleaded and gave evidence and tendered Exhibit D as conditions of service which bound the employers and employees. See paragraph 5 of 2nd Further Amended Statement of Claim, (pages 20 – 25 and 39B of the Record). See EFURIBE VS. UGBANG (2010) 14 NWLR (Pt. 1213) 257 @ 285 A – G.

It was contended, that in the instant case, the employment and subsequent withdrawal of service of the Respondent by the Appellant after many years of commendable service is not in issue. That, what is in issue in this case is the Respondent’s entitlement, his services having been withdrawn (by the Appellant). And that, this issue has been sufficiently dealt with in Exhibits A, C, D, G & H, the existence of which was admitted by the Appellant. That, the Respondent’s union negotiated with the management of the Appellant and agreed on conditions and terms in Exhibits C & D was an agent of the Respondent, as a disclosed principal. See IWOK VS. UNIVERSITY OF UYO (2011) 6 NWLR (Pt. 1243) 211 @ 238 D – E.

Thus, the Respondent can maintain this action as an individual, and claim his rights arising from Exhibits C & D. That, Exhibit D is binding and enforceable. Accordingly, the court is urged to resolve Issue No. 1 in favour of the Respondent.

Regarding Issue No.2, it’s submitted, inter alia, that the reason for the disengagement of the Respondent can be garnered from Exhibit A. That, the lower court adequately considered the defence of the Appellant, for it considered all the 8 items of the Respondent’s claim item by item as well as Exhibits A & D before it came to the conclusion that the Respondent was disengaged from service by the Appellant for reason of redundancy.

The court is urged upon to answer Issue No. 2 in the affirmative and resolve same in favour of the Respondent.

Regarding the 3rd Issue, the submission on Issues 1 & 2 above were relied upon. Reiterated that he lower court was right in holding that the parties were bound by the collective agreement after closed study of Exhibits C, D, G & H. And that the lower court equally adequately considered the defence of the Appellant. Thus, the court is urged upon to answer Issue 3 in the affirmative, and accordingly dismiss the appeal.

Conclusively, the court has been urged upon to accordingly dismiss the appeal.

I have accorded an ample consideration upon the nature and circumstances surrounding the appeal, the submissions of the learned counsel contained in the respective briefs thereof vis-Ã -vis the record of appeal, as a whole.

Having contrasted the three issues raised in the respective briefs of argument of the parties, I am of the considered view that they are not at all mutually exclusive. Thus, I have deemed it most appropriate to adopt the three issues formulated at page 3 of the Appellant’s brief for the determination of the appeal.

However, before treating the said issues on the merits, I have deemed it imperative to deal with the purported preliminary submission of the Respondent, contained at pages 3 – 6 of the brief thereof. It is so obvious, that at the tail-end of the Respondent’s submission on the alleged preliminary points at page 6 paragraph 1 of the brief thereof, the Respondent has stated thus:

Having raised these preliminary points as regards to the Appellant’s grounds of appeal and brief of argument, the Respondent will now proceed to answer all material points of substance contained in the Appellant’s brief.

Most curiously, however, it’s not evident on the records that the Respondent had taken the liberty to file a notice of preliminary objection prior to the filing of the brief thereof. Strangely enough, no notice of preliminary objection was given in the Respondent’s brief of argument to have entitled him to argue the preliminary points, as he did, at pages 3 – 6 of the Respondent’s brief in question. He cannot do that. The well set out provisions of the Court of Appeal Rules, 2011 are very much unequivocal on that point.

However, my discountenancing the purported preliminary points raised by the Respondent in the brief thereof, notwithstanding. There is every cogent reason for me to hold that Ground 6 of the six Grounds of Appeal has not been related to any of the three issues formulated in the Appellant’s brief. Thus the said Ground 6 of Appeal is deemed abandoned, and it’s hereby accordingly struck out.

ISSUES NO. 1 & 2:

It is so obvious, that both Issues 1 & 2 of the Appellant are mutually inclusive. Thus, as the proverbial birds of the same feathers, it’s imperative to allow them to flock together, so to say.

The Issue No. 1 raises the very vexed question of whether the lower court was right to hold, as it did, that collective argument (Exhibit D) governed the relationship of the respective parties, and thus binding upon them, when there was no evidence of its adoption by the parties as forming part of or incorporated into the Respondent’s contract of employment with the Appellant.

Instructively, the vexed Judgment of the lower court, the subject of the instant appeal, is contained at pages 56 – 103 of the Record of Appeal. I have amply considered the said Judgment. Some of the salient findings of the lower court with particular regard to Exhibit D are traceable to pages 87, 88 and 97 of the Record of Appeal, thus:

The defendant’s witness having admitted exhibit D as the collective agreement of the parties and the defendant having referred to it in their exhibit ‘G’ and agreed to implement its terms in exhibit C, the court has no choice than to hold that the defendant has incorporated it in the condition of the contract of service with the Plaintiff…

In the circumstances therefore I hold that the parties are bound by exhibit D.

The lower court equally held (at page 88, lines 1 – 9 from the bottom), thus

The situation where the bank would need to right size the existing staff strength is not covered anywhere else in the collective Agreement exhibit D other than in Article 5 dealing with redundancy.

At page 89, lines 11 – 18 (Record), the lower court was equally recorded to have held that –

By article 5 (d) of the collective Agreement, i.e. exhibit D, an employee who has served the defendant for fifteen (15) years and above shall be entitled to monetary compensation of fourteen (14) weeks basic salary for each completed year of service. By article (g) of the said collective Agreement where a pension and gratuity scheme is in operation, the employee shall receive either redundancy benefits or gratuity entitlement whichever is higher, without prejudice to the payment of pension benefits earned.

Again, at page 97 lines 1 – 2 from the bottom and page 98 lines 1 – 5, (Record) the lower court held, thus:

I have already found that the parties are bound by exhibit D, the collective Agreement. I have also found that the Plaintiff was disengaged from the defendant on the ground of redundancy and that he is to be paid either redundancy or gratuity, whichever is higher.

The parties are agreed that the Plaintiffs was paid gratuity and not redundancy benefit. The Plaintiff’s claim is that he ought to have been paid the redundancy benefit, which is higher. In the instant case, parties are ad idem, that Exhibit D relates to what is commonly known as a Collective Agreement. The vexed Collective Agreement was allegedly signed between the management of the Appellant, on the one hand, and the Association of Senior Staff of Banks, Insurance and Financial Employees on the rationalization exercise meeting held at Mainland Hotel, Ebute-Metta, Lagos on Tuesday, 17 October 2000. The said Exhibit D has been variously alluded to in the extant 2nd Further Amended Statement of Claim of the Respondent. Most particularly, by paragraphs 10 and 11 of the said 2nd Further Amended Statement of Claim thereof, the Respondent has pleaded, thus:

10. the Plaintiff avers that by the provisions of the collective Agreement at part 11 (Section 1) Article 5 under which the staff rationalization exercise was carried out the defendants and obliged to pay whichever is higher of redundancy or gratuity payment.

11. The Plaintiff avers that the defendants in effecting “gratuity” payment, instead of “redundancy” payment to the Plaintiff were in breach of the terms of the collective Agreement.

Under paragraph 12(d) of the said 2nd Further Amended Statement of Claim, the Collective Agreement, most especially part II (Section 1) Article 5 thereof, was listed as one of the several documents sought to be relied upon at the trial by the Respondent. In the course of the examination in chief thereof, the Respondent had testified to the following effect –

The collective agreement I testified about is our conditions of service and it is written. The document shown to me is a certified true copy of the collective agreement. The original is with the union who certified it.

In the absence of any objection by the Defendant’s (Appellant’s) counsel, the lower court proceeded to rule, thus:

“Court: certified true procedural and main collective agreement is admitted in evidence without objection and marked exhibit ‘D’.”

The DW1 was one Sunny Onokpachire, an employee of the Appellant. Under cross examination, he admitted, thus:

“It is true that the bank has a scheme of service called Collective Agreement, i.e. Exhibit ‘D’.”

The DW1 equally admitted under cross examination to the fact that –

It is true that when a staff is declared redundant, he is paid either his pensions and gratuity or the redundancy benefit, whichever is higher. The Plaintiff was not declared redundant in this case. It is not correct to say that the staff rationalization carried out by the bank in the year 2000 was a redundancy exercise. I cannot confirm whether there is provision for withdrawal of service in exhibit ‘D’.

I have critically, albeit dispassionately, considered pleadings, nay the evidence adduced by the respective parties as contained in the record of appeal vis-Ã -vis the various exhibits tendered at the trial of the suit. In the instant case, Exhibit D is what is tagged – THE PROCEDURAL AND COLLECTIVE AGREEMENT BETWEEN THE NIGERIA EMPLOYERS’ ASSOCIATION OF BANKS, INSURANCE AND ALLIED INSTITUTIONS (NIGERIA).

Generally, a collective agreement, except where it’s been evidently adopted as forming an integral part of the terms of the contract of employment, is neither intended to give, nor capable of giving an individual employee a right to sue over an alleged breach of his terms of contract of employment as may be conceived by him to have affected his interest. As a matter of principle, a Collective Agreement is not in any way meant to supplement an employer’s contract of service. Undoubtedly, it’s the service agreement or the conditions of service that regulate (govern) the relationship between an employer and the employee thereof. See COLLEGE OF MEDICINE OF UNILAGOS VS. ADEGBITE (1973) 53 SC 149 @ 162; INTERNATIONAL DRILLING VS. (NIG) LTD AJIJOLA (1976) 1 AII NLR 112 @ 130; UBN VS EDET (1993) 4 NWLR (Pt. 286) 288 @ 298 paragraphs B – C; 300 paragraphs C – E.As alluded to above, the DW1 has admitted under cross examination, that Exhibit D is a collective agreement of the respective parties. The Appellant, as rightly held by the lower court in the vexed judgment, agreed to implement the terms of the said Exhibit D in Exhibit C, the Appellant informed the Executive Secretary of the Nigerian Employers Association of Banks, Insurance and Allied Institutions, 30 Marina Lagos that it was carrying out a major restructuring of its operation and human resources in order to face the new challenges and return the bank to profitability. Thus, according to the Appellant –

Consequently, they would need to right size the existing staff strength. Therefore, in line with the Collective Agreement, we hereby request you to make necessary arrangements for the management of the bank to hold discussions with the leaders of the respective staff unions…

Undoubtedly, the legal status of Exhibit D – the collective Agreement vis-Ã -vis the bindingness thereof on the parties to a contract of service has long been settled by a plethora of authoritative judicial pronouncements. In one of such plethora of authorities, the Supreme Court was reputed to have held, thus:

See CHUKWUMAH VS. SHELL PETROLEUM DEV. CO. OF NIG. LTD (1993) 4 NWLR (Pt. 289) 512 @ 543 H; 544 E – F; 567 B – D; H. See also UBN PLC VS. EDET (1993) 4 NWLR (Pt. 287) 297; UBN VS. CHINYERE (2010) 10 NWLR (Pt. 1203) 453 @ 469 E – F.

Flowing from the forgoing dictum of the Supreme Court in CHUKHUMAH VS. SPDC NIG. LTD (Supra) et al, I am unable to disagree with Appellant’s submission, to the effect that for Exhibit D to be of any probative value, the provisions thereof needed to have been expressly adopted either in the Respondent’s letter of appointment, or in a subsequent communication thereto varying the terms of employment thereof before he could enforce its contents against the Appellant.

Most ironically, however, the Respondent had not deemed it appropriate, or even expedient, to plead and tender the letter of appointment thereof. Yet, the Respondent has admitted under cross examination, thus:

It is true that when I joined the Bank, I was given a letter of appointment, there is a condition of service which binds the employer and the employee. The Bank gave me a copy. The condition of service I just testified about is the same as the collective agreement which has already been tendered in evidence. Exhibit ‘D’ is the said condition of service and it is the existing one. Exhibit ‘D’ provides for pension, gratuity, etc. See page 34 of the record.

Not surprisingly, inspite of the admission thereof, under cross examination alluded to above, that he was duly given a letter of appointment by the Appellant, yet the Respondent failed, for reasons best known thereto, to plead and tender the letter of appointment thereof in question. Thus, there is a cogent reason for the Appellant’s learned counsel to postulate, as he did, at page 4 paragraph 2.04 of the brief thereof, to the effect that if the Respondent had tendered the said letter of appointment thereof, it would have been unfavourable thereto. Accordingly, this court has been urged upon the court to invoke the unequivocal provision of Section 149 (d) of the Evidence Act. See AGBI VS. OGBEH (2006) 11 NWLR (Pt. 990) 65 @ 125 paragraph.

Indeed, it’s a well settled principle, that the court has an unfetted discretionary power to presume the existence of any fact which it thinks likely to have happened, regard being accorded to the common course of natural events, human conduct, public and private business, in their relation to the facts of the particular case. Most particularly, the court may presume that evidence which could be, but is not produced, would, if actually produced, be unfavourable to the person who withholds it. See Section 149 (d) of the Evidence Act.

The presumption under paragraph (d) of Section 149 of the Evidence Act (Supra) is a matter of logical inference. See MANDILLAS AND KARABERIS LTD & ANOR VS. IGP (1958) 3 FSC 20; (1958) WR NLR 241; ADEYEMI VS COP (1961) AII NLR 387; (1961) WNLR 137; ENAHORO VS. R (1965) NMLR 265 @ 288. In both aforementioned cases, it was held that the provisions of Section 148 could not be applied to shift the onus of proof placed on the prosecution in all criminal cases.

The mere DW1’s admission regarding the existence of Exhibit D, without more, is not sufficient to avail the Respondent of the onus of satisfying the conditions stipulated UNION BANK OF NIG. LTD VS. EDET (Supra), et al.

What’s more, one other reason, as rightly contended by the Appellant why the said Exhibit D must not be held to be strictly on the Appellant is predicated upon the doctrine of privity of contract. From the Respondent’s pleadings as a whole, it’s evident that the Respondent did not personally negotiate Exhibits C & D for himself. Both pleadings and evidence thereon are to the effect that the Union’s represented all the parties thereto. However, the law is well settled that the agreements were entered for and on behalf of the members of the Unions, they cannot in law, sue to enforce the said agreements. As aptly reiterated by the Apex court –

It is trite law, that as a rule of general law, a contract affects only the parties thereto and cannot be enforced by or against a person who is not a party to it. In other words, only the parties to a contract can sue and be sued on the contract and generally, a stranger to a contract can neither sue or (sic) be sued on the contract even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. See MAKWE VS. UWUKOR (2001) 31 WRN 1 @ 10 per Iguh, JSC.In the light of the above postulations, the answer to Issue No. 1 is in the negative, and same is hereby resolved in favour of the Appellant.

ISSUE NO. 2

The second Issue raises the question of whether or not the lower court findings that the disengagement of the Respondent’s services from the Appellant was based on redundancy, are supported either in law by evidence adduced at the trial of the Suit.

By paragraph 3 of the 2nd Further Amended Statement of Claim thereof the Respondent has pleaded thus:

(3) The plaintiff avers that following the restructuring and takeover of the defendant Bank by new management, the plaintiff was rationalized or declared redundant with benefits from the service of the Bank with effect from October, 2000. The plaintiff shall rely on the letter headed “withdrawal of service written by the defendant management to the plaintiff dated 19 October, 2000 at the trial of this action. The said letter was received with the remark: letter and cheque received without prejudice” on the duplicate.

By the said paragraph 3 of the 2nd Further Amended Statement of Claim, the Respondent has pleaded that he was –

“rationalized or declared redundant with benefits from service of the Bank with effect from October, 2000.”

Exhibit A was relied upon by the Respondent as evidence of the withdrawal of service thereof by the Appellant. Under cross examination, the Respondent testified to the effect, inter alia, that –

“The redundancy claim arose out of the condition of service Exhibit “D” and also the agreement reached on 17th October 2000 i.e. Exhibit “C”.”

By virtue of the Amendment Statement of Defence thereof, especially paragraph 4, the Appellant vehemently denied that the Respondent was declared redundant, thus –

“4. In further denial of paragraph 3, the defendant did not declare the plaintiff redundant but only withdrew his service.”

In addition to the said paragraph 4 of the pleading thereof, Appellant’s DW1 testified thus –

“It is not true that the plaintiff was declared redundant. The services of the plaintiff were withdrawn based on his incompetence to cope with the new challenges of the new bank.”

See page 41 of the Records.

The DW1 equally testified under cross examination thus:

The reason for downsizing is contained in Exhibit A which is the review of standard and the current industry competence of the old staff. The service of the plaintiff was withdrawn based on his incompetence vis-Ã -vis the current standard of banking in Nigeria … By downsize in the banks the same thing as reduction in the staff strength of the bank. It can also be called a restructuring, the staff strength. It does not mean redundancy which is a completely different issue. Redundancy comes in when the staff strength is more than the work available.

See page 44 of the Record.

I have amply considered the pleadings and evidence adduced in support thereof by the respective parties.

Under Issue No. 1, I have had a cause to come to the inevitable conclusion that Exhibit D (the collective agreement) cannot avail the Respondent on the Grounds that (i) there is no evidence to show that the terms of Exhibit D have been incorporated in the letter of appointment of the Respondent, (ii) the Respondent has failed to prove that he was privy to the said Exhibit D.

Afortiorari, the contents of Exhibit A regarding the withdrawal of service of the Respondent, are clear, plain and rather unambiguous. Exhibit A is to the effect, inter alia, thus:

WITHDRAWAL OF SERVICE

Following the restructuring and the take over of the bank by new management, we wish to advise you that the new management has considered the need to review the standard and the current industry competence of the old staff and has decided that your services are no longer required by the bank with effect from October 19, 2000 …

As rightly contended by the learned counsel to the Appellant, the contents of Exhibit A are clear, plain and unambiguous. Thus, it’s a long settled principle, that where the words of a statute or document are apparently clear, plain and unambiguous, a parole (oral) evidence would not be allowed or admissible to contradict, alter or vary it. See BUNGE VS. THE GOV. OF RIVERS STATE (2006) 12 NWLR (Pt. 995) 573 @ 616 – 617; OLANLEGE VS. AFRO CONTINENTAL NIG. LTD (1996) 7 NWLR (Pt. 458) 29 @ 40; Section 134 of the Evidence Act.In my considered view, it would be a great misnomer to impute the word “redundancy” into Exhibit A, as that word did not feature in Exhibit A at all. At page 89 of Record, the lower court was recorded to have held, inter alia, thus –

“I hold that the restructuring of the bank by the reduction of the work through no fault of the employee is redundancy. The plaintiff therefore disengaged on the ground of redundancy.”

Ironically, however, the lower court embarked upon a sheer voyage of discovery into Exhibit D, with a view to arriving at the above finding that the withdrawal of service of the Respondent was based on redundancy rather than incompetence as clearly and unambiguously stated in Exhibit A. In my view, that finding cannot in any way stand the test of reason predicated upon the plain and unambiguous wordings of Exhibit A.

In the circumstance, the most inevitable answer to Issue No. 2 is in the negative and same is hereby resolved in favour of the Appellant.

ISSUE NO. 3

The third and last, but not the least issue, raises the vexed question of whether or not the lower court was right in holding that the terminal benefits of the Respondent be computed and or calculated based on total emolument and not on basic salary, having regards to the evidence adduced at the trial.

In paragraph 18 (iv) of the 2nd Further Amended Statement of Claim, the Respondent has pleaded thus:

(iv) Balance of 3 months salary in lieu of Notice – 71, 876. 15.

On the other hand, the DW1 testified to the effect thus –

By Exhibit “A”, the plaintiff was paid N34, 803.28 as three months salary in lieu of notice. This was calculated on basic salary. It is not correct that the salary in lieu of notice should be based on total salary.

See page 46 lines 11 – 15 of the Records.

Whereupon, the lower court held at page 98 lines 5 – 6 of the Record thus –

“By Exhibit “C” the rationalization benefit was to be based on total emolument i.e. basic, housing, transport and utility.”

It was equally held by the lower court, thus:

By Exhibit “C” the parties agreed that the salary in lieu of notice was to be based on total emolument. The parties once ad idem that the three months salary in lieu of notice paid to the plaintiff was based on basic salary. I therefore hold that the plaintiff has proved entitlement to the balance since his total emolument was N35, 559.81 his entitlement under this head ought to be N35, 559.81 multiplied by three …

I agree with the Appellant’s learned counsel, that Exhibits C & D are sui generic and fall within the definition of “collective agreement”. Yet, as far-reachingly postulated under Issue No. 1 above, it is a well settled doctrine that –

“a collective agreement is an extra-legal document totally devoid of sanctions.”

See UBN VS. CHINYERE (2010) 10 NWLR (Supra) @ 369 paragraphs D – F; NWAJAGU VS. BAI CO. (NIG.) LTD (2000) 14 NWLR (Pt. 687) 356; MAKWE VS. UWUKOR (Supra) @ 10 per Iguh, JSC.

However, the above postulation, notwithstanding! Having critically, albeit dispassionately, once more perused Exhibit A (the letter of withdrawal of Respondent’s services), I am unable to uphold the Appellant’s view that the Respondent is not entitled to have his terminal benefits computed (calculated) upon the basis of the total emolument but on basic salary thereof. By virtue of Exhibit A, as copiously alluded heretofore, the Respondent was informed by the Appellant that his –

“services are no longer required by the Bank with effect from October 19, 2000.”

The Appellant further informed the Respondent, vide paragraph 2 of Exhibit A, thus:

“Consequently, the Bank in view of your past services will pay the following benefits:

1. Your salary for October 2000, which will be credited to your account as usual.

2. 3 months salary in lieu of notice.

3. Gratuity.

4. Any leave arrears will be commuted to cash.

5. Monthly pension payment to be made to you as and when due in line with the existing bank policy.

In addition to the above and in recognition of the years of continuous service staff put into the bank … management also approved that the under listed prepaid allowances should not be dedicated from staff entitlement;

¢ Prepaid Housing Allowance;

¢ Prepaid Furniture Allowance.

It is rather obvious on the face of Exhibit A, that the terms “Basic Salary”, “Gross Emolument” and “Total Emolument” were not used at all. Thus, in the absence of any evidence to the contrary, the phrase –

“3 months salary in lieu of notice”

as couched in paragraph two, item No. 2 of Exhibit A must be construed to mean the equivalent of the total, gross or aggregate emolument to which the Respondent was entitled as at the date of October 19, 2000.

In my considered view, by virtue of Exhibit A, it would be inequitable for the Appellant to compute the “3 months salary in lieu of notice”, to which the Respondent was entitled, on the mere basis of “monthly basic salary”.

In the circumstance, there is no gainsaying the fact that the Issue No. 3 is inevitably liable to be, and it is hereby, resolved against the Appellant, and in favour of the Respondent.

Hence, having resolved the 1st and 2nd Issues in favour of the Appellant and the 3rd Issue in favour of the Respondent, there is every compelling reason for me to hold that the appeal partly succeeds. The appeal is accordingly hereby allowed in part.

CONSEQUENTIAL ORDER

Having allowed the appeal in part, I have deemed it imperative to order as follows –

1. That the Judgment of the lower court regarding the sum of N1, 539, 859.80 being the balance of rationalization or redundancy is hereby set aside.

2. That the Judgment of the lower court regarding the sum of N71, 813.15 being the balance of three months salary in lieu of notice, is hereby affirmed.

3. That the Judgment of the lower court regarding the sum of N35, 559.81 being October, 2000 salary, is hereby affirmed.

There shall be no order as to costs.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead judgment prepared by my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JCA. I Agree with the judgment and also abide by the consequential order(s) made therein including the order as it relates to costs.

TOM SHAIBU YAKUBU, J.C.A.: I had read before today, the draft of the judgment, just rendered by my learned brother, I.M.M. SAULAWA, JCA.

I am in complete agreement with his Lordship’s reasoning and conclusion that the appeal succeeds in part only, hence it is allowed, in part accordingly.

I, abide by the consequential order and that as to costs, contained in the lead judgment.

Appearances

M.N. AIGBE with M. OGHAGBON Esq. and J. NWAEGBUFor Appellant

AND

J.E. LEGBEDIONFor Respondent